Parashat Shavua

Hemdat Yamim Parashat Shlach lecha 5763

There will be a difference in the reading of the parshiot between Eretz Yisrael and Chutz La’aretz for the next several weeks. We, as being located in Israel, will be sending all of our subscribers according to the parsha being read here. Therefore, if you live in Chutz L’aretz, you may want to save your weekly mailing of Hemdat Yamim for the following week. We will be having our annual Yom Iyun, on the 8th Yahrtzeit of Marav Hagaon Harav Shaul Yisraeli, z.t.l.. It will take place on Thursday, 19 Sivan (June 19) from 1:30 – 6:45 in our Beit Midrash (5 Hamem Gimel St., Jerusalem). The topic will be, “The Reemergence of Study of Tanach in Our Days.” A very distinguished set of lecturers has been chosen for this important event. The general public is warmly invited. (There are seating accommodations for women). For more information contact us: info@eretzhemdah.org phone: (02) 537-1485 fax: (02) 537-9626 **************************************************************************************** Hemdat Yamim Parshat Shelach 21 Sivan 5763 ************************************************ This edition of Hemdat Yamim is dedicated to the memory of R' Meir ben Yechezkel Shraga Brachfeld o.b.m. ********************************************************************************* Eretz Hemdah is the premier institution for training young rabbis to take the Israeli Rabbinate's rigorous Yadin Yadin examinations. Eretz Hemdah, with its distinctive blend of Religious Zionist philosophy and scholarship combined with community service, ensures that its graduates emerge with the finest training, the noblest motivations resulting in an exceptionally strong connection to Jewish communities worldwide. ********************************************************************************************************************* Spreading the Glory the Hard Way Harav Moshe Ehrenreich Our parasha tells us of the terrible punishment that our forefathers suffered for their rebellion and refusal to go up to Eretz Yisrael. Bnei Yisrael had to wander in the desert for 40 years and the generation that left Egypt did not merit to enter Eretz Yisrael. But if we look elsewhere in Tanach, we find another major consequence of their sin, which does not seem to appear here. Yechezkel tells us: "I also raised up My Hand against them in the desert to scatter them among the nations" (20:23). Indeed, David Hamelech used almost identical words in Tehillim (106:24-27) to describe the exile and dispersal, which was decreed upon Bnei Yisrael. But where in the Torah do we see an exile and dispersal because of the sin of the meraglim; we see only a delay in the entry to Eretz Yisrael. The Radak (Yechezkel, ad loc.) raises this issue, and, in his second answer, says that the dispersal is a reference to the future exile, as Chazal tell us that the sin of the meraglim was on Tisha B'Av (date of the destruction of the Temples). But it would still be appropriate to have at least a hint at the connection to the future exile in our parasha, which is the primary source about the events regarding the sin and its aftermath. The Netziv (Bamidbar 14:21) finds such a hint. The Torah describes Hashem's oath in an unusual way. "But as I live, and the glory of Hashem shall fill the entire land..." What is the connection between the oath and Hashem's glory filling the world? The Netziv explains that the dispersal that is referred to in Tehillim became necessary in order to sanctify Hashem's Name, which had been defiled through the sin. Bnei Yisrael would have to be dispersed in order that Hashem's glory would indeed fill the world. But how would that happen? There is a profound idea that is found in several places in midrashim that when Bnei Yisrael go into exile, the Divine Presence goes with them (see Eicha Rabba 2; Yalkut Shimoni, Tehillim 885, and more). Thus, when Hashem swore that His Glory would fill the land, He was in fact swearing that this would include Bnei Yisrael spreading out throughout the land and "bringing Hashem along." The Netziv himself gives another application to the proliferation of the Divine Glory. When the sheep (representing Bnei Yisrael) is forced to live among 70 wolves (representing the nations who seek its harm) and they are able to survive, this is the greatest evidence of Divine Providence. ****************************************************************************************************************** P'ninat Mishpat Penalty Clause for Delay in Completing Land Registry- Part I (condensed from Piskei Din Rabbani'im XIV, pp. 30-42), Case: The defendants (=def) sold an apartment to the plaintiffs (=pl). The contract states that def will transfer ownership in the Tabu (Land Registry) within a year, and if there is a delay of more than a week, then def will have to pay $10,000. The transfer did not take place by the required time and litigation began. Def explained that they put in the request to the proper authorities two and a half months before the appointed day and that the delay was because the authorities misplaced the file. Does def need to pay pl the sum, in full or in part? Ruling: The first element we will look into is whether def's excuse for the delay is a valid one. One can claim that even if there were a bureaucratic delay, had def started the process promptly, there would have been enough time to deal with the problem. The Rama (Yoreh Deah 232:12) writes: "Someone who swore to do something within a year or on a certain day ... if he did not do it right away because he said that he had enough time to do it, and then he forgot or was unable to do it, some say that it is considered an extenuating circumstance (oness), and some say it is not considered an extenuating circumstance." The Taz (ad loc.), Magen Avraham (OC 108:11) and G'ra (ad loc.) rule like the first opinion, that it is considered a valid excuse despite the fact that he could have taken care of the matter earlier. We have consulted with experts who say that two and a half months is sufficient time to assume that the paper work would be completed, and so, according to most poskim, def's excuse is valid. Furthermore, it appears that even the stringent opinion would agree here that def is not to be blamed for the delay. In our case, the day of transfer was purposely delayed in order that def would not have to pay off his mortgage right away. This being the case, we cannot possibly come with complaints to def for not taking care of the matter right away. There is a possible further reason to exempt def. There is a major question whether such a penalty clause is binding. Cases where someone obligates himself to pay a relatively large sum of money as an assurance that he will carry out his side of the deal are subject to the rules of asmachta. The Shulchan Aruch (Choshen Mishpat 207) generally rules that such obligations are not binding, because the person who obligates himself has no intention to pay, as he expects to do his part. Even if the contract were enforceable in secular court (which is not always the case) that fact does not create a situation where we can consider the asmachta obligation valid based on accepted practice. Since the obligation is made between two Jews, who are required to adjudicate their dispute in front of a beit din, the halacha is that which is binding (Chazon Ish, CM 16:11). Furthermore, even situmta (common practice), which helps overcome certain halachic limitations in an agreement, does not overcome problems of asmachta, which stem from an objective assumption that a person does not expect to pay. [This issue, discussed in detail in the original article, is beyond our scope.] *************************************************************************************************************** Moreshet Shaul (from the works of Hagaon Harav Shaul Yisraeli zt"l) The Status of the East Bank, the West Bank, and the Mikdash - part I (condensed from Chavot Binyamin, siman 95) The gemara (Chagiga 3b) relates that R. Eliezer was informed that it was decided in the beit midrash that ma'aser ani was to be given in the areas of Ammon and Moav (on the east bank of the Jordan) during the shmittah year. [Ed. note- we must add that during the shmittah year, ma'asrot are not given. Therefore, this statement says, in effect, that the laws of shmittah that are observed in that place, do not apply to the fullest extent.] He cried and recited the pasuk, "The secret of Hashem is to those who fear Him, and His covenant to inform them." R. Eliezer sent a message that he had an ancient tradition based on halacha l'Moshe miSinai along those lines. He explained that "many cities were captured by olei Mitzrayim and not by olei Bavel (in the time of bayit sheni). Because the first kedusha was for its time and not for the future, they (olei Bavel) left them in order that the poor would have a place to depend on during the shmittah year." Tosafot (ad loc.) asks how it is possible to say that the East Bank was not sanctified in regard to shmittah, as sources say explicitly. Tosafot distinguishes between the lands of Ammon and Moav and other areas of the East Bank. They bring two opinions if Ammon and Moav, where shmittah does not fully apply, refer even to the areas that were first taken from them by Sichon and Og prior to Moshe's conquest or only to those that had remained in the hands of Ammon and Moav. It is difficult to understand the former opinion, that even areas that went through the hands of Sichon and Og were not sanctified. After all, the reason for conquest outside the normal borders of Eretz Yisrael to not work is that they are inappropriate before all of Eretz Yisrael is conquered. However, the battle against Sichon and Og was Divinely mandated. We can learn from Tosafot elsewhere (Yevamot 16a) that indeed the lands of Ammon and Moav that were "purified" by Sichon, were sanctified by Moshe. Their lack of kedusha during bayit sheni was because they were not re-sanctified by olei Bavel. But that approach has its own problems. Firstly, the gemara elsewhere was unable to determine if R. Eliezer held that the initial kedusha was permanent or not, yet according to this approach, it must clearly not be? Also, there were many lands even within Eretz Yisrael proper, which were not recaptured by olei Bavel. So why were these lands singled out as not receiving renewed kedusha? The Rambam (Shmittah V'yovel 4:28) says that the laws of sefichin (a stringency within the laws of shmittah) did not apply on the East Bank, as that area should be no more stringent than areas of Eretz Yisrael which were taken only by olei Mitzrayim. The Ra'avad comments that there should be no need to learn from areas on the West Bank, as it is simply enough to say that these areas were not taken by olei Bavel? The Kesef Mishne responds that it is not so clear that no areas on the East Bank were captured in the time of bayit sheni. It appears that the Rambam and Ra'avad disagree on the following point. The gemara (Arachin 32b) says that the opinion that the initial kedusha was permanent learns the pasuk, "that your fathers inherited and you shall inherit it" (Devarim 30:5) that once it was inherited by the fathers, its status remains. But in order to have this permanence, the land must be conquered in a way that enables it to be called, "the fathers' inheritance." This only applies to areas in Eretz Yisrael, which were designated originally for Bnei Yisrael. The East Bank, even the areas which were captured properly, had a kedusha but not one of "the fathers' inheritance." Therefore, their sanctity lasted only as long as the conquest continued. It can be debated whether the lands of Sichon and Og that were not taken from Ammon and Moav were originally designated for Bnei Yisrael. But the lands that were originally earmarked for the sons of Lot certainly were not. ************************************************************************************************************ Ask the Rabbi Question: I am a student who sold a product to friends on behalf of a businessman for a percentage of the sales. I mentioned to the owner my concern about a safe place to keep the sales money until I would find time to give him the money, but we decided it would be okay. I thought that if something happened to the money, it would be his loss. It turns out that a significant amount of the money was stolen, and the owner expects me to pay. I told him that I didn't think I had to pay, and that we could go to a din Torah (rabbinical court case). Then the idea arose that instead of having a din Torah, we would make a p'shara (compromise). Which way am I better off? Answer: First of all, we have a problem giving advice on how you can come out monetarily ahead at someone else's expense. The mishna in Pirkei Avot warns us to avoid being like orchei hadayanim (translated, in modern Hebrew as, lawyers). While there are different opinions exactly when this applies (see Shulchan Aruch, Choshen Mishpat 17:9), our policy, as a service dedicated to helping Jews further their Jewish knowledge and appreciation, is to not take sides in disputes between litigants, as honorable as either side might be. The next thing you need to understand is what "I am better off" should mean. While society, in general, concentrates on how to get every penny one can, the Torah teaches that it is at least as important to pay every penny you owe. Now it is true that when one is not sure if he owes money, the halacha often is, "the burden of proof is on he who wants to extract money," and the "one who is holding on" doesn't need to volunteer the money. However, if the defendant knows he owes the money, he is obligated to pay everything he owes unless the other side relinquishes his rights. P'shara, whether by means of arbitration or mediation, is the best way to solve a conflict (see Choshen Mishpat 12). Even a beit din which is approached to adjudicate should try to convince the parties to agree to a compromise (ibid.). However, that is the case as long as the litigants believe that they are or are likely to be correct. The Shulchan Aruch (CM 12:6) rules: "Someone who is demanded to pay money is forbidden to search for means to get out of paying in order that the other party will make a p'shara with him and relinquish his rights to the rest of the money." Realize that if you want us to look into the facts, as you present them, that we cannot assure you that you deserve to win the case, as we do not know what the other party would respond to your claims. But we might be able to determine that, according to your story, you clearly do not deserve to win all or part of the money in dispute. Then you would be bound to pay what you owe, and a p'shara would only be possible within the range of the money that is still in doubt. You would have a responsibility to inform the other side how much you concede, in order that any money he relinquishes through compromise would be based on informed consent, not ignorance. The following are exceptions to the rule that you must willingly pay that which beit din would require you to pay. If you are correct, in principle, but are unable to prove your claims, then you could take certain steps to pressure the other side to a p'shara rather than lose the din Torah (Tumim 12:5). Other circumstances and steps are discussed (see Pitchei Teshuva 12:8), but are more tenuous. You are permitted to tell the other side that, although halachically you have to pay (if that is the case), you have claims that strengthen your side morally, and you can appeal to your counterpart's sense of fair play to go beyond the letter of the law. (This can be done even after a formal verdict of beit din has been handed down (see Shach 12:6). Outcome: The student requested that we try to determine his status. Based on his story alone, he was seen to owe at least most of the money [details beyond our present scope]. He informed the other side and appealed to him with a variety of claims, and they reached a gentlemanly compromise somewhere in the middle, to the satisfaction of each. Harav Shaul Israeli zt"l FoundeHar and President Deans: Harav Yosef Carmel Harav Moshe Ehrenreich ERETZ HEMDAH 5 Ha-Mem Gimmel St. P.O.B 36236 Jerusalem 91360 Tel/Fax: 972-2-5371485 Email: eretzhem@netvision.net.il web-site: www.eretzhemdah.org American Friends of Eretz Hemdah Institutions c/o Olympian 8 South Michigan Ave. Suite 605 Chicago, IL 60603 USA Our Taxpayer ID#: 36-4265359

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